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Case 1:14-cv-00066-CG-B Document 36 Filed 07/03/14 Page 1 of 27
IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF ALABAMA
SOUTHERN DIVISION

STATE OF ALABAMA, *
ex rel Ashley M. Rich, *
District Attorney for the *
13th Judicial District of *
Alabama, *
*
Plaintiff, *
*
vs. * CIVIL ACTION NO.14-00066-CG-B
*
50 SERIALIZED JLM GAMES, INC. *
GAMBLING DEVICES, et al., *
*
Defendants. *

REPORT AND RECOMMENDATION
This matter is before the Court on Plaintiff the State of
Alabama’s (“the State”) Motion to Remand (Doc. 8) and the MOWA
Band of Choctaw Indians, Jimmy L. Martin, Chief Framon Weaver,
and JLM Games, Inc.’s Motion to Dismiss (collectively referenced
as “the MOWA Defendants”) (Docs. 5, 10). The motions, which
have been fully briefed and are ripe for resolution, have been
referred to the undersigned Magistrate Judge for entry of a
Report and Recommendation pursuant to 28 U.S.C. § 636(b)(1)(B).
For the reasons set forth below, the undersigned RECOMMENDS that
Plaintiff’s Motion to Remand be GRANTED and that this case be
remanded to the Circuit Court of Mobile County, Alabama.

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I. Background
This lawsuit involves in rem forfeiture proceedings
initiated by the State of Alabama in the Circuit Court of Mobile
County, Alabama, on December 6, 2013, against 50 serialized JLM
Games, Inc. gambling devices, $10,090.47 in U.S. Currency, 3
computers, Miscellaneous Gambling Documents, and Paraphernalia.
(Doc. 1-1 at 2). According to the State, these items were
seized during the execution of a search warrant at the
MOWA/Choctaw Entertainment Center in Mount Vernon, Alabama as a
part of a criminal investigation into gambling offenses under
Alabama Code 13A-12-20. (Id., at 3). The State alleges that the
seized items are illegal gambling devices that were used and are
intended to be used for the purpose of unlawful gambling
activity, in violation of Alabama law. (Id.).
According to the State, notice of the in rem forfeiture
proceeding was served upon the MOWA/Choctaw Entertainment Center
[hereinafter MOWA Choctaw Center], where the alleged illegal
gambling activity was taking place, Framon Weaver, who is
identified as a person who was allegedly promoting the illegal
gambling activity at the MOWA Choctaw Center, and JLM Games,
Inc., the entity that allegedly supplied the gaming devices to
the MOWA/Choctaw Center and that retains an interest in the
devices that the State seeks to have forfeited. (Id., at 5; Doc.
8 at 2). On February 7, 2014, the MOWA Choctaw Center and
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Framon Weaver filed a motion in state court seeking to dismiss
the forfeiture action on the basis of sovereign immunity of the
MOWA Tribe. (Doc. 1-1 at 69).
Subsequent thereto, JLM Games, Inc., Jimmy L. Martin, the
MOWA Bank of Choctaw Indians and Framon Weaver (Collectively
referenced as the “MOWA” defendants) removed this action to this
Court on February 18, 2014. (Doc. 1). In their original notice,
Defendants cited 28 U.S.C. §§ 1331, 1441, and 1446 as the
grounds for removal1. (Id.). After being granted leave to file
an amended notice of removal, the MOWA Defendants asserted that
federal jurisdiction is proper pursuant to 28 U.S.C. §§ 1331,
1441, 1443, and 1446. (Docs. 17, 31). According to the MOWA
Defendants, removal is proper pursuant to § 1331, federal
question jurisdiction, because the “central issue...is whether
the MOWA Tribe is entitled to assert a defense of sovereign
immunity”, and this determination “relies heavily on the
interpretation of the 1830 Treaty of Dancing Rabbit Creek, a
federal treaty entered into between the Choctaws and Congress.”
(Doc. 31 at 4-5). Additionally, the MOWA Defendants contend
that federal question jurisdiction exists pursuant to the Indian

1 Defendants also sought permission to file a consolidated brief
in support of their removal notice and a motion to dismiss in
excess of the Court’s page limitation. The motion was denied
and Defendants were directed to file separate documents as the
brief in support of removal and the motion to dismiss involved
distinct issues. (Docs. 2, 4).
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Gaming Regulation Act (“IGRA”), the All Writs Act, and the Anti-
Injunction Act. (Doc. 17 at 11-14; Doc. 31. at 6, 6-9). The
MOWA Defendants further contend that this action is removable
pursuant to § 1443 because the State’s seizing of their gambling
equipment constitutes a violation of their civil rights and a
violation of their right to due process because the State has
not seized the gambling equipment of other native tribes. (Id.,
at 9-10).
Additionally, on February 20, 2014, the MOWA Defendants
filed a Motion to Dismiss on the basis of sovereign immunity.
(Doc. 5). In support thereof, the MOWA Defendants contend that
the MOWA Tribe has enjoyed federal and state recognition as an
Indian tribe and is not a political subdivision of the State;
thus, the State of Alabama has no authority to regulate gaming
in “Indian Country.” (Doc. 10 at 7). The MOWA Defendants
further contend that the Tribe enacted an amended Tribal Gaming
Ordinance that defines Class II gaming based on federal laws set
forth in the Indian Gaming Regulatory Act (“IGRA”) and it is the
IGRA’s definition of gambling rules, rather than the State’s
regulations, that controls the propriety of the MOWA Tribe’s
gaming activities. (Id., at 8). Additionally, the MOWA
Defendants contend that the Supremacy Clause, the Indian
Commerce Clause and the IGRA preempt the State’s claims because
Congress, unless it delegates otherwise, has plenary power to
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regulated Indian Tribes. (Id., at 27).
On February 20, 2014, the State filed a motion seeking
remand of this case to the Circuit Court of Mobile County,
Alabama. (Doc. 8). In its motion, reply, and supplement the
State argues that this Court lacks subject matter jurisdiction.
(Docs. 8, 26, 32). Specifically, the State contends that
federal jurisdiction is improper as the MOWA Defendants’
reliance on the IGRA is misplaced because the IGRA protections
only extend to federally recognized Indian tribes and the MOWA
Defendants were unsuccessful at gaining federal recognition by
the Department of Interior’s Office of Federal Acknowledgement.
(Doc. 8 at 3). Additionally, the State contends that the fact
that the MOWA Tribe has been recognized by the State of Alabama
is of no consequence because such recognition confers only
potential state law rights upon the MOWA Tribe – the
interpretation of which remains a question of state law. (Id.,
at 4). Further, the State argues that because the MOWA Tribe
cannot claim sovereign immunity arising out of any federally
conferred rights then there is no federal question involved in
these proceedings.
Additionally, the State contends that jurisdiction is
improper because the State has not consented to this Court’s
jurisdiction on this matter and permitting such suit is a
violation of the State’s Eleventh Amendment sovereign immunity.
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(Doc. 26). The State further contends removal is improper
because the MOWA Defendants’ reliance on their potential
immunity defense in support of removal fails to satisfy the
well-pleaded complaint rule as it fails to “allege a claim that
arises under the constitution”’ instead, the MOWA Defendants
cite merely a defense to the State’s claim. (Doc. 32 at 2)
(emphasis added). Thus, the face of the complaint does not
establish federal jurisdiction. Finally, the State argues that
the MOWA Defendants’ civil rights discrimination claim pursuant
to § 1443 is baseless because there is only one other Indian
tribe in this jurisdiction and unlike the MOWA Tribe, the other
Indian tribe is federally recognized and is therefore protected
by the IGRA. Thus, the State contends that this Court lacks
federal jurisdiction as there is no federal question on the face
of the complaint and the MOWA Defendants have failed to prove
that jurisdiction is proper in this Court.
In response, the MOWA Defendants’ assert that this case is
an exception to the well-pleaded complaint rule based on artful
pleading. (Doc. 33). Specifically, the MOWA Defendants contend
that a federal question exists because the Court must interpret
the Treaty of Dancing Rabbit Creek in order to determine whether
the MOWA Tribe can invoke sovereign immunity. (Id., at 3).
Further, the MOWA Defendants argue that the IGRA completely
preempts the State’s claim. (Id., at 5).
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As a preliminary matter, the undersigned notes that while
the MOWA Defendants’ motion to dismiss was filed first, the
motion to remand raises the threshold issue of subject-matter
jurisdiction. Accordingly, it will be addressed first because
“[a]bsent federal jurisdiction, this Court lacks the power to
decide the pending motion to dismiss, and must immediately
remand this action to state court without reaching the question
of whether the State has stated cognizable claims against the
Defendants.” Cooper v. Int’l Paper Co., 912 F. Supp. 2d 1307,
1308 (S.D. Ala. 2012).

II. Analysis
A. Standard of Review
Federal district courts “shall have original jurisdiction
of all civil actions arising under the Constitution, laws, or
treaties of the United States.” 28 U.S.C. § 1331. The
determination of whether an action “arises under” the laws of
the United States is made pursuant to the “well-pleaded
complaint rule.” Louisville & Nashville R. Co. v. Mottley, 211
U.S. 149, 152, 29 S. Ct. 42, 53 L. Ed. 126 (1908). “Federal
courts have jurisdiction to hear, originally or by removal, only
those cases in which the well-pleaded complaint establishes
either that federal law creates the cause of action or that the
plaintiff’s right to relief necessarily depends on resolution of
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a substantial question of federal law.” Wuerl v. International
Life Science Church, 758 F. Supp. 1084, 1086 (W.D. Pa. 1991)
(citations omitted).
“As a general rule, absent diversity jurisdiction, a case
will not be removable if the complaint does not affirmatively
allege a federal claim.” Beneficial Nat’l Bank v. Anderson, 539
U.S. 1, 6, 123 S. Ct. 2058, 156 L. Ed. 2d 1 (2003). When only
state-law claims are asserted in a complaint, a claim “aris[es]
under” federal law if it “necessarily raise[s] a stated federal
issue, actually disputed and substantial, which a federal forum
may entertain without disturbing any congressionally approved
balance of federal and state judicial responsibilities.” Grable
& Sons Metal Prods., Inc. v. Darue Eng’g & Mfg., 545 U.S. 308,
314, 125 S. Ct. 2363, 162 L. Ed. 2d 257 (2005). That is,
“federal jurisdiction over a state law claim will lie if a
federal issue is: (1) necessarily raised, (2) actually disputed,
(3) substantial, and (4) capable of resolution in the federal
court without disrupting the federal-state balance approved by
Congress.” Gunn v. Minton, 133 S. Ct. 1059, 1065, 185 L. Ed. 2d
72 (2013).
“Because a federal question must appear on the face of the
plaintiff’s complaint to satisfy the well-pleaded complaint
rule, a defense which presents a federal question can not create
removal jurisdiction. Thus, a case may not be removed to
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federal court on the ground of a federal question defense alone,
even if that defense is valid.” Kemp v. IBM, 109 F.3d 708, 712
(llth Cir. 1997) (citation omitted). See Nicodemus v. Union Pac.
Corp., 440 F.3d 1227, 1232 (10th Cir. 2006) (explaining that
“federal-question jurisdiction may not be predicated on a
defense that raises federal issues” and that a federal defense
is “not enough” to make a case arise under federal law); see
also Aetna Health Inc. v. Davila, 542 U.S. 200, 207, 124 S. Ct.
2488, 159 L. Ed. 2d 312 (2004) (explaining that whether case
arises under federal law “must be determined from what
necessarily appears in the plaintiff’s statement of his own
claim in the bill or declaration, unaided by anything alleged in
anticipation of avoidance of defenses which it is thought the
defendant may interpose”) (internal quotations omitted);
Franchise Tax Bd. of California v. Constr. Laborers Vacation
Trust of California, 463 U.S. 1, 13-14, 103 S. Ct. 2841, 77 L.
Ed. 2d 420 (1983) (explaining that, if “federal law becomes
relevant only by way of a defense to an obligation created
entirely by state law” the well-pleaded complaint rule prevents
the exercise of federal question jurisdiction and that this is
true “even if the defense is anticipated” in the plaintiff’s
complaint); Pinney v. Nokia, Inc., 402 F.3d 430, 446 (4th Cir.
2005) (reversing district court’s finding of federal-question
jurisdiction where federal regulation became relevant only in
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relation to a federal preemption defense).
That said, there is a qualification to the well-pleaded
complaint rule known as “complete preemption” or “super
preemption.” Under the “complete preemption” doctrine, Congress
may preempt an area of law so completely that any complaint
raising claims in that area is necessarily federal in character
and therefore necessarily presents a basis for federal court
jurisdiction. Metropolitan Life Ins. Co. v. Taylor, 481 U.S. 58,
63-64, 107 S. Ct. 1542, 95 L. Ed. 2d 55 (1987). In such a
situation, the statute’s “extraordinary pre-emptive power” not
only provides a federal defense to the state common law
complaint but “converts...[it] into one stating a federal claim
for purposes of the well-pleaded complaint rule.” Id., 481 U.S.
at 65.
A removing defendant must establish the propriety of
removal under 28 U.S.C. § 1441 and, therefore, must establish
the existence of federal jurisdiction. See Friedman v. New York
Life Ins. Co., 410 F.3d 1350, 1353 (llth Cir. 2005) (“In removal
cases, the burden is on the party who sought removal to
demonstrate that federal jurisdiction exists.”)(citation
omitted). Because removal infringes upon state sovereignty and
implicates central concepts of federalism, removal statutes must
be construed narrowly, with all doubts resolved in favor of
remand. See Univ. of S. Ala. v. Am. Tobacco Co., 168 F.3d 405,
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